Summary
discussing motions to vacate under Rule 60 compared to motions to reconsider under Local Rule 3.6 of the Southern District of New York
Summary of this case from Johnson v. ToffeyOpinion
05 Civ. 0001 (LAK)(KNF).
January 31, 2008
REPORT AND RECOMMENDATION
BACKGROUND
George W. Drance ("Drance") brought this action, pro se, against Citigroup, Simpson Thacher Bartlett, Melvin L. Cantor and Daniel J. Keenaghan, pursuant to 42 U. S. C. §§ 1983 and 1985, alleging violations of his constitutional rights; obstruction of justice; conspiracy to obstruct justice; fraud; and conspiracy to commit fraud. On August 9, 2006, the undersigned issued a report, recommending that the assigned district judge: (a) grant the defendants' motion to dismiss the plaintiff's amended complaint based on the collateral estoppel doctrine; and (b) deny the plaintiff's cross-motion for leave to file a second amended complaint, because such a pleading would be futile. Upon consideration of the plaintiff's objections, the defendants' response and de novo review of the record, the assigned district judge adopted the report and recommendation by order, dated February 22, 2007. Based on that order, the Clerk of Court entered a judgment in favor of the defendants, on March 15, 2007. On March 29, 2007, the plaintiff served the defendants with his application that the court: (a) reconsider its February 22, 2007 order; b) vacate the March 15, 2007 judgment, entered pursuant to that order; and (c) direct the parties to prepare for discovery and trial. The defendants opposed the motion.
On April 4, 2007, the plaintiff filed a notice of appeal from the March 15, 2007 judgment. On October 16, 2007, the Second Circuit Court of Appeals granted the plaintiff's motion to withdraw the appeal without prejudice. On November 30, 2007, the plaintiff wrote a letter to the Court in order "to apprise [the Court] of documents missing from the Open Record of this case and to ask [the Court's] permission to replace them for the record." The defendants opposed the request made via the plaintiff's letter. The plaintiff's application for reconsideration is addressed below.
DISCUSSION
Drance contends: (1) the defendants "have misled this [c]ourt to render a judgment that is incompatible with the facts;" (2) the 12 exhibits, submitted with his affirmation in opposition to the defendant's motion to dismiss and in support of his cross-motion to amend the amended complaint, appear not to have been considered by the court; (3) the court stated inaccurately, in its February 22, 2007 order, that he objected "to all aspects" of the report and recommendation; (4) the collateral estoppel standard was not met by the defendants; and (5) his constitutional right to trial by jury is implicated. The defendants maintain the plaintiff failed to: (a) demonstrate that the court overlooked the exhibits submitted with the plaintiff's opposition papers and to explain how those exhibits would affect the outcome of the instant case; (b) identify any basis for reconsidering the court's dismissal of the amended complaint on collateral estoppel grounds; and (c) identify any error in the court's denial of his cross-motion to amend the amended complaint. Local Civil Rule 6.3 Motion for Reconsideration
"Whether raised under [Fed.R.Civ.P.] 60 or Local Rule [3.6], the standard for granting a motion for reconsideration is strict." New York News Inc. v. Newspaper Mail Deliverers' Union of New York, 139 F.R.D. 294, 294-95 (S.D.N.Y. 1991). "[R]econsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). "A court must narrowly construe and strictly apply Local Rule 6.3 so as to avoid duplicative rulings on previously considered issues and to prevent the Rule from being used to advance different theories not previously argued, or as a substitute for appealing a final judgment." Commercial Risk Reinsurance Co. Ltd. v. Sec. Ins. Co. of Hartford, ___ F. Supp. 2d ___, 2007 WL 4358454 at *1 (S.D.N.Y. Dec. 12, 2007).
In his motion for reconsideration, Drance fails to identify any factual matters or controlling decisions that the court failed to consider previously when ruling on the defendant's motion to dismiss the complaint and his cross-motion to amend the amended complaint. Drance's statement of uncertainty, that "[i]t appears that my 12 Exhibits of prima facie evidence in support of my Affirmation in Opposition to Motion to Dismiss and my Cross Motion to amend were not brought to the attention of this court," is not sufficient to satisfy the obligation imposed on litigants seeking reconsideration. Drance does not explain why he believes his exhibits were not considered by the court and he does not identify any particular fact(s) or controlling caselaw, contained in his 12 exhibits, that the court overlooked and that would have altered the conclusion reached by the court.
Drance asserts the court stated inaccurately that he "objected to all aspects of the Report." However, the court explained that it "reviews de novo all portions of a magistrate judge's report to which there are objections" and, in the instant case, made its decision only after "[h]aving read the Report, Plaintiff's objections, Defendant's response, and having read and reviewed the record in this matter de novo." Inasmuch as courts interpret a pro se litigant's submissions liberally, see Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), and the court explained that its decision was based on a de novo review of the record and upon consideration of all portions of the report to which objections had been made, the Court finds Drance's assertion, that the court made an inaccurate statement, without merit.
In his motion for reconsideration, Drance attempts to relitigate the issue of collateral estoppel, already considered and decided by the court. He concedes that the court "identif[ied] the requirements necessary for collateral estoppel to be invoked" correctly. However, he fails to identify any material fact or controlling decision(s) that the court overlooked that would have altered the determination reached by the court. Drance also raises a new issue when he states: "In addition to the issues discussed in this case there is the overriding issue of my [S]eventh Amendment constitutional right to a trial by jury to resolve this dispute." This he cannot do. A motion for reconsideration is neither a vehicle through which to advance different theories not previously argued, nor a substitute for appealing a final judgment. Therefore, the Court finds that Drance failed to meet the burden imposed on him by Local Civil Rule 6.3 of this court, and granting his application for reconsideration is not warranted.
Rule 60 Relief from Judgment or Order
On motion and just terms, the court may relieve a party from a judgment because of fraud, misrepresentation or misconduct by an opposing party. See Fed.R.Civ.P. 60(b)(3). "However, a Rule 60(b)(3) motion cannot be granted absent clear and convincing evidence of material misrepresentations and cannot serve as an attempt to relitigate the merits." Fleming v. New York University, 865 F.2d 478, 484 (2d Cir. 1989). Additionally, the moving party must demonstrate that "this conduct prevented [the movant] from fully and fairly presenting his case." Catskill Dev., L.L.C. v. Park Place Entm't Corp., 286 F. Supp. 2d 309, 312 (S.D.N.Y. 2003) (citation omitted). "Since [Fed.R.Civ.P.] 60(b) allows extraordinary judicial relief, it is invoked only upon a showing of exceptional circumstances" and "[a] motion seeking such relief is addressed to the sound discretion of the district court." Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986).
Drance maintains the defendants "misled [the] court to render a judgment that is incompatible with the facts." However, as discussed above, he fails to identify any material misrepresentation that the defendants made and that it prevented him from fully litigating and fairly presenting his case. Accordingly, absent clear and convincing evidence of any material misrepresentation, granting Drance's application for relief from the judgment, based on misrepresentation, is not warranted.
RECOMMENDATION
For the reasons set forth above, I recommend that the plaintiff's application for reconsideration be denied.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, Room 1310, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 470 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).